Even as a five-judge Constitution bench of the Supreme Court will on November 3 hear suggestions from senior lawyers and attorney-general Mukul Rohatgi for improving the collegium system of judicial appointments following the quashing of the NJAC law on October 16, the Centre has decided to oppose any tinkering with the collegium by a five-judge bench. The Centre feels that the issue should be decided by nine judges.
The Constitution bench comprising Justices J.S. Khehar, J. Chelameswar, Madan B. Lokur, Kurian Joseph and A.K. Goel had held that the collegium system that was in existence prior to the enactment of the Constitutional amendment and NJAC laws would be revived. But, considering the criticism that the collegium system is opaque and not transparent, the bench decid-ed to hear suggestions for improving the system. Admitting flaws in the collegium system, the court had said: “All that was needed to keep the collegium system on the rails was the unstinted cooperation of the executive and an effective implementation strategy, with serious and meaningful introspection and perhaps some fine-tuning and tweaking to make it more effective. Unfortunately, the executive did not respond positively, perhaps due to its misunderstanding of the decisions of this court.”
There are 400 vacancies of judges in the high courts and three vacancies in the apex court and the collegium is vested with the responsibility of making recommendations to fill these. However, the Centre has decided to raise a preliminary objection on the jurisdiction of the five-judge bench to suggest any improvement in the collegium system evolved by a nine-judge bench first in 1993 and reiterated in 1998.
A nine-judge bench in 1993 held that the Chief Justice of India and a collegium of two judges will make the selection and appointment. Consequent upon doubts having risen with the Union of India about the interpretation of this case, the President of India in 1998 referred nine questions to the Supreme Court for its opinion.
A nine-judge bench answered the reference unanimously, on October 28, 1998. It said: “The Chief Justice of India must make a recommendation to appoint a judge of the Supreme Court and to transfer a Chief Justice or puisne judge of a high court in consultation with the four seniormost puisne judges of the Supreme Court.
Insofar as an appointment to the high court is concerned, the recommendation must be made in consultation with two seniormost puisne judges of the Supreme Court.”
The Centre is expected to tell the court that a bench of five judges cannot examine the correctness of the judgment of a nine-judge bench or give an interpretation as to the scope of collegium.
Any tinkering with the collegium system by five judges will be impermissible as that can be done only by a nine-judge bench.
